Richardson v. Louisville & N.R. Co.

• Decision Date: 20 June 1908
• Citation: 111 S.W. 343,129 Ky. 449
• Parties: RICHARDSON v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

111 S.W. 343

129 Ky. 449

RICHARDSON v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

June 20, 1908

Appeal from Circuit Court, Madison County.

"Not to be officially reported."

Action by C. Richardson against Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Hobson and Barker, JJ., dissenting.

Grant E. Lilly, for appellant.

Benjamin D. Warfield and Fred P. Caldwell, for appellee.

CARROLL J.

On January 19, 1893, C. Richardson shipped from Irvine, in Estill county, Ky. to Cincinnati, Ohio, a car load of hogs. The car was carried by the Richmond, Nicholasville, Irvine &amp Beattyville Railroad Company to Richmond, Ky. and then turned over to the Louisville & Nashville Railroad Company, to be carried by it to Cincinnati. When the car reached Cincinnati and was delivered, the hogs were in bad condition and some of them were dead. Richardson thereupon brought an action against the Richmond, Nicholasville, Irvine & Beattyville Railroad Company to recover damages, charging that the loss was due to the negligence of the carrier. That company showed that it transported the hogs to Richmond in due time and turned them over to the Louisville & Nashville Railroad Company in good condition. On this proof it was held that he could not recover against that company. R., N., I. & B R. Co. v. Richardson, 43 S.W. 465, 19 Ky. Law Rep. 1495; Id., 66 S.W. 1035, 23 Ky. Law Rep. 2234. After his action against that company had been dismissed, Richardson on April 13, 1905, brought this suit against the Louisville &amp Nashville Railroad Company, charging that the losses were due to its negligence. Among other things, appellee pleaded the 5-year statute of limitation; the action not having been brought until something over 12 years after the cause of action accrued. The circuit court held the plea good, and dismissed the action, and Richardson appeals.

The hogs were shipped under a written contract, which is as follows: "Irvine, Ky. Station, Jan. 19, 1893. This memorandum of a special contract of carriage between the Richmond, Nicholasville, Irvine & Beattyville Railroad and C Richardson, of Irvine, Ky. witnesseth: Whereas, the said Richardson has this day shipped a car load of hogs to be carried by the Richmond, Nicholasville, Irvine & Beattyville Railroad from Irvine, Ky. to Richmond, both points on its own line of road, and by it as agent of shipper to be forwarded to Green & Embry at Cincinnati, Ohio, on the same terms as this contract: In consideration of the special rate of $36 for car guaranteed by said railroad company between said point of shipment and Cincinnati, Ohio, the shipper hereby agrees to load, unload, feed, water, and take all proper care of said stock, and insure the said railroad company and all connecting lines over which said stock may pass between point of shipment and destination from all loss or damage which may be incurred by delays in transportation or delivery, or arising out of its responsibility as master over its agents or servants (gross and wanton negligence excepted) growing out of this shipment. The shipper hereby further agrees that the actual value of said stock at the time and place of shipment shall govern the settlement of all damages for which the carriers may be liable, and declares the value of the stock herein described does not exceed $12 for each hog. In witness hereof, the agent of the company and the owner of the stock, or his authorized agents, have fixed their...